Kolbe challenged Maryland’s Firearm Safety Act of 2013 (“FSA”), which bans AR-15s and other military-style rifles and shotguns as well as detachable large capacity magazines, by contesting the constitutionality of the law under the Second Amendment, as well as bringing a Fourteenth Amendment Due Process and Equal Protection claim. (Quick note to the readers, the use of the terms “assault rifles”, “military-style rifles and shotguns” and “large capacity magazines” are being used in reference to the Court opinion and not the author’s belief that these firearms and magazines should be referred to as such).

At the District Court level, the judge ruled that the FSA was constitutional. While analyzing the Second Amendment claims, the Court expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. As a result the Court employed an intermediate scrutiny analysis.

As the case trickled up the Court system, the 4th Circuit issued an opinion from a divided three judge panel which found “that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home.” More importantly, the Court became the first Court in the country to require a strict scrutiny analysis in regard to the Second Amendment claims.

Unfortunately, the Court sitting En Banc had a different idea. It was happy to affirm the District Court’s opinion, “in a large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth.” However, the Court did make an explicit statement that the District Court did not. The Court stated

[w]e conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The Court explicitly adopted that intermediate scrutiny was the correct analysis to utilize. “[I]ntermediate scrutiny is the appropriate standard because the FSA does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.”

In its analysis the Court found that “[t]he FSA bans only certain military-style weapons and detachable magazines, leaving citizens free to protect themselves with a plethora of other firearms and ammunition. Those include magazines holding ten or fewer rounds, nonautomatic and some semiautomatic long guns, and — most importantly — handguns.”

Applying the intermediate scrutiny standard the Court found “the FSA survives such review because its prohibitions against assault weapons and large-capacity magazines are — as they must be — ‘reasonably adapted to a substantial governmental interest.’” The Court stated that “Maryland’s interest in the protection of its citizenry and the public safety is not only substantial, but compelling.”

Unfortunately, this means that yet another Court has refused to require a strict scrutiny analysis to a fundamental constitutional right. Perhaps the most troubling aspect is the Fourth Circuit believes that firearms like the AR-15 are not protected by the Second Amendment, opening the door for more restrictive legislation to be put in place and making it more difficult to challenge.

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Published by Adam Kraut, Esq.

Adam Kraut was born and raised in Chester County, PA. Active in scouting since kindergarten, Adam achieved the rank of Eagle Scout in 2004. After graduating high school, Adam attended SUNY Binghamton where he graduated in 2009 with a major in Political Science concentrating in politics and law. After taking a year away from academics, Adam attended Widener Law School at night while maintaining a day job and graduated in 2014.
Adam is an avid firearms enthusiast, whose love for firearms began in Boy Scouts at Camp Horseshoe. Adam’s experience in the firearms industry as the general manager of a Federal Firearms Licensee, who is a Class 3 dealer, gives him a working knowledge of the challenges the industry, licensees and individuals face on a daily basis. Having worked with industry leaders, individual licensees and individuals both from behind the counter and in a legal context, Adam is in a unique position to give advice with insight others may not have.
In addition to being active in the courtroom, Adam is politically active to ensure that the Second Amendment rights of future generations continue to be protected. He is the host of The Gun Collective‘s show, The Legal Brief, where he dispels the various legal myths and misinformation in the gun world. In his free time, Adam volunteers with his old Boy Scout troop, cranks out ammunition behind the reloading press, can be found at the range training, enjoys hiking through the woods and cares for his small pack of dogs.
View all posts by Adam Kraut, Esq.

I’ve already taken up my pen and paper to call on Virginia House and Senate members to call for the repeal of the NFA. However, this decision by the court on AR’s would appear to be more in need of our attention. Perhaps you might have a few quotes I may use in my letters to urge them to reconsider. I will begin a second mailing regarding this decision immediately and add whatever I might receive from you. Thank you in advance.

Short of changing the law, there isn’t much the Virginia House and Senate members can do. We do have a system of government that has three independent branches in order to maintain checks and balances. You can certainly write and explain that the Second Amendment is a fundamental constitutional right and that you want to see laws passed which reflect that.

The people are in disagreement with this Court. Time has come to replace them…..all. Any person with the correct type of training could effect huge damage Like has never been seen with a weapon that only fires three rounds between magazine changes. The criminals who have been purpotrating these hainess acts have been by in large unsuccessful. Without training you are unsuccessful with anything. I put it before you that a twenty or thirty round magazine is not restrictive in the manor in which you seek. Do You seek to stop these criminals, or do you seek to chip away at the second Amendments’ God given Right. Either way you are wrong. Take your frustrations out on the criminal, not the persons who would be between you and them!

Incredible that Judges with years of education could lack basic understanding of the Constitution to this extent. The primary reason for the 2nd Amendment is not and never has been self defense in the home. It was to guarantee the right keep and bear arms to defend We the people against enemies, foreign and domestic. The Founding fathers had just fought a bloody revolution against their own government after it had become tyrannical and unresponsive to it’s citizens. Military style weapons are Exactly what they were protecting, not dueling pistols or skeet guns.

They don’t lack understanding, I suspect, they merely don’t care about breaking their oath to uphold the Constitution when stacked against the opportunity to vindicate their emotions and political views.

Big vehicles with giant gas guzzling V8’s are also insane when a Prius can get you there. So is it insanity for one person to be driving around in a giant Cadillac Eldorado? It’s called freedom of choice. I target shoot with an AR15 because I enjoy shooting it. That’s my right as a law abiding American citizen. I choose to target shoot with an AR15 and not a Ruger 10/22.

Sir
At what point does it become a citizens and a nations right to defend themselves and their nation against those that mean to tear at the very fabric of the founding principles? One day it’s one small loss, then another, then chipping away at United States Constitutional freedoms. Are not US civilian as well as current and former US military members oath keepers that have the God given right to protect themselves and this nation with any and all means at their disposal?

I am more afraid of the corrupted courts than an armed invasion, I am more afraid of the insanity called the left than an armed foreign invasion, I am more afraid of these un Constitutional rats when this otherwise peaceful person cant properly defend himself due to the treason of the above mentioned scum, because that is exactly what they want . To strip us of our God/Nature/Constitutional rights to defend ourselves properly from THEM. I will not comply ,in fact , i will revolt and probably die in the process , but I WILL extinct as many of the above mentioned scum as i can in the process. I am not cattle who are easily lead to slaughter , I have ‘teeth’ to protect my right to live. And i truly believe we will be fighting in the streets before long against the aforementioned criminally insane.And i truly believe this is the only way we will fully restore our freedoms,we allowed it to ‘progress’ to far without reciprocating against those who would destroy our freedoms in kind.

Tristan is ‘spot-on’ with the 2nd Amendment Rights our founding Fathers created due to war with the government. Nobody thought we would be shooting at each other, so the 2nd was created to keep us equal with a possible tyrannous government again. The weapons we are allowed to keep & bear are the exact same the military uses. Our bent on socialism government has chewed away at our Rights by not allowing ‘We the People’ to keep and bear those same arms. Time for that to go. if the socialists keep up with their rhetoric with attempts to curtail ‘We the People’ & enact tyranny, there WILL BE FIGHTING in the streets. The revolution will continue. If they want my gun, they got to come and take it. Molon Labe. (they better bring their very best)

“Devastating” – hah! It’s unconstitutional gun control that has been devastated again and again over the last twenty years, and that trend will not be slowed by a laughable and irrelevant opinion from oathbreakers on the Fourth Circuit. This case merely sets up a circuit conflict which is an important consideration in a certiorari petition to the US Supreme Court, which is where this issue will ultimately end up.

Gun bans are failing faster than Justice Ginsburg’s health, and this garbage opinion will end up as a forgotten footnote in the history books.

I love the information! So when did the constitution have limits? Right to bare Arms! It doesn’t say right to bare a punny fire arm that can be over ran! When is America going to wake up? Let all the terroist in and take our personal protection away!

arms that are “like” “M-16 rifles” — with my back ground I would take this at full auto rifles. The restrictions on those are already crazy. My AR-15 is not like a M-16. It may fire the same ammo and look like an M-16 to person who is ignorant of arms but is NOT really like one. I bear what arms as I see fit not what a king or a master wants me to have or not to have. We should not have to keep fighting this over and over. NRA, needs to stand firm with GOA and JPFOA and get vocal

I LOVE the fact that in United States v. Miller the Supreme Court ruled the NFA constitutional based largely on the interpritation that a short barrel shotgun was not suitable for militia use. Now we have the fourth curcit ruling that AR-15s can be prohibited because they are useful in MILITARY service?!?! Can we get some cosistancy here?

This liberal anti-gun court is making laws; not abiding by the written Constitutional 2A, which does not distinguish what firearms are legal, hence all are. These judges are a threat to our Constitution and hopefully their incorrect decision will be overturned later. Disgraceful!

It’s about time we start using the same terms they use to make our firearms sound worse than they are. We need to let everyone know who these “Assault Judges ” and Assault Politicians ” are. They are the people who are assaulting our rights under the Constitution, the same one that they swore an oath to uphold and defend in order to get in to office. They have violated their oaths and should be immediately removed from office as subversives. Make sure you always refer to them with the term “assault” in their names in speech and print.

Too bad the individuals who make up these courts seem to command a wider knowledge of law than they seem to display about life. Like declaring something widely mass produced for years it will never exist anymore is not likely. The hallmark moment in this life based reality began for many of us in the first minutes of 1968 Tet Offensive. When 300,000 weapons that didn’t exist anymore suddenly appeared and opened up directly on us….

Article 1, Section 2 of the Constitution (lack of authority of congress to make such laws) + the 2nd Amendment (prohibits congress from acting)+ the Supremacy Clause of the 14th Amendment = no Federal or State gun laws! Simple math and logic! The 2nd Amendment rotects all ‘ARMS’ not just ‘Firearms’.

When the second amendment was written the public had the SAME weapons as the military. I simply don’t understand their logic that the public can’t have an AR15 because it’s “like” an M16 used by the military. More liberal nonsense. Using their logic they need to ban every weapon with a 223/556 caliber because that’s what the military uses.

Actually, the 2A is, as they say, “about muskets” – rapid fire, assault-type weapons with little or no sporting purpose, and with a bayonet lug. Some states had to buy muskets for citizens, since the citizens spent their own money on rifles and shotguns suitable for hunting and self defense. At $14 silver dollars a pop, the musket cost about 3 weeks wages for the average worker.

The qualifying statement of ” reasonably adapted to a substantial governmental interest” in and of itself, is a violation of the second amendment. Whereas, the second amendment not only affords the American citizens the right to keep and bear arms against intruders, it also includes the protection of one’s self and family against the incursion of a tyrannical government. This was included because the author’s had just fled from and fought such a government. Now, a similar such government is attempting to impose it’s will to disarm the citizens for “their own safety” this is hypocrisy at its worst!

Just curious, if this country is invaded by Russia or China, what are we to fight back with? Single shot guns? While the enemy has all the auto weapons they can carry. Seems a little short sighted to me. Don’t say it can never happen.

Article 1, Section 2 of the Constitution (lack of authority of congress to make such laws) + the 2nd Amendment (prohibits congress from acting)+ the Supremacy Clause of the 14th Amendment = no Federal or State gun laws! Simple math and logic!
Also, the 2nd amendment is to protect all ‘Arms’ not just ‘Firearms’.

As a reminder, here are a few things the Founders had to say!

“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”
– James Madison, I Annals of Congress 434, June 8, 1789
“…the ultimate authority, wherever the derivative may be found, resides in the people alone…”
– James Madison, Federalist No. 46, January 29, 1788
“Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”
– William Pitt (the Younger), Speech in the House of Commons, November 18, 1783

“To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”
– Richard Henry Lee, Federal Farmer No. 18, January 25, 1788
“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state. In a single state, if the persons entrusted with supreme power become usurpers, the different parcels, subdivisions, or districts of which it consists, having no distinct government in each, can take no regular measures for defense. The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.”
– Alexander Hamilton, Federalist No. 28
Question: Is the 1934 NFA the only place that puts a tax on a Constitutional Protected Right? If so, is there legal action that can be taken on the bases of taxing a ‘Protected Right’ or has anyone thought of this avenue of action?

If they want it from me come and take, Since the actually definition of an assault rifle ,is an automatic firearm, no a semi, and to have a magazine that holds more than 30 rounds, which none of mine do, Someone should tell these old bastards what an assault rifle really is cause they damn sure made fools of themselves again with this decesion